Introduction to Law

Part 1 : The Theory of Law

Chapter 1 : The concept of Law
A) Definition of Law

 Law may be defined as:

 A set of Rules, General & Abstract Which Govern
the Behavior & Relationships of the Individuals in the
Society, Accompanied by Sanctions, Enforced by the
Competent Public Authorities.
 Law signifies a rule applied indiscriminately to all
actions. It is a notional pattern of conduct to which
actions do or ought to conform. Law is a large body
of rules and regulations, based mainly on general
principles of justice, fair play and convenience and
which have been worked out by governmental bodies
to regulate human activities.
Philosophy of Law :

Philosophy of law is a branch of philosophy that

examines the nature of law and law's relationship to
other systems of norms, especially ethics and political
philosophy. It asks questions like "What is law?", "What
are the criteria for legal validity?", and "What is the
relationship between law and morality ?" 

Several schools of thought have developed around the

nature of law, the most influential of which are:
Natural moral law theory, which asserts that law is
inherent in nature and constitutive of morality, at least
in part. On this view, while legislators can enact and
even successfully enforce immoral laws, such laws are
legally invalid. The view is captured by the maxim: an
unjust law is not a true law, where 'unjust' means
'contrary to the natural law.

Natural law theory has medieval origins in the

philosophy of Thomas Aquinas, especially in
his Treatise on law. In late 20th century, John
Finnis revived interest in the theory and provided a
modern reworking of it.
 Legal positivism, which is the view that law depends
primarily on social facts. Legal positivism has
traditionally been associated with three doctrines: the
pedigree thesis, the separability thesis, and the
discretion thesis.
 The pedigree thesis says that the right way to
determine whether a directive is law is to look at the
directive's source. The thesis claims that it is the fact
that the directive was issued by the proper official
within a legitimate government, for example, that
determines the directive's legal validity—not the
directive's moral or practical merits.
 The separability thesis states that law is
conceptually distinct from morality. While law might
contain morality, the separability thesis states that "it
is in no sense a necessary truth that laws reproduce
or satisfy certain demands of morality, though in fact
they have often done so.

 The discretion thesis states that judges create new

law when they are given discretion to adjudicate
cases where existing law underdetermines the result.
 Legal realism, which asserts that law is the product
of decisions made by courts, law enforcement, and
attorneys, which are often decided on contradictory
or arbitrary grounds. According to legal realism, law is
not a rational system of rules and norms. Legal
realism is critical of the idea that law has a nature
that can be analyzed in the abstract. Instead, legal
realists advocate an empirical approach to
jurisprudence founded in social sciences and the
actual practice of law in the world. For this reason,
legal realism has often been associated with the
sociology of law.
 Legal interpretivism, which denies that law is source-based
because law necessarily depends on human interpretation that
is guided by the moral norms of communities. Given that judges
have discretion to adjudicate cases in more than one way, legal
interpretivism says that judges characteristically adjudicate in
the way that best preserves the moral norms, institutional facts,
and social practices of the societies in which they are a part. It is
consistent with legal interpretivism that one cannot know
whether a society has a legal system in force, or what any of its
laws are, until one knows some moral truths about the
justifications for the practices in that society. In contrast with
legal positivism or legal realism, it is possible for the legal
interpretivist to claim that no one in a society knows what its
laws are (because no one may know the best justification of its
practices.)
 There is no general definition of Law which includes
all the aspects of Law yet for a general
understanding, some of the important definitions are
as follows:

 Aristotle: It (perfect law) is inherent in the nature of

man/woman and can be discovered through reason.
It is immutable, universal and capable of growth.
 Austin: Austin says “Law is the command of
Sovereign.” Rules laid down by political
superiors to political inferiors. In other words,
body of command by a sovereign member or
members of an independent society wherein
the author of law is supreme.
 Paton: “Law consists of a body of rules which
are seen to operate as binding rules in the
community by means of which sufficient
compliance with the rules may be secured to
enable the set of rules to be seen as binding.”
 A.V. Dicey: In the words of A. V. Dicey, “Law
is the reflection of Public opinion.”

 Ihearing: defines Law as “the form of the

gurantee of the conditions of life, of society,
assured by State’s power of Constraints.”
 Salmond: Acording to Salmond, “Law is body
of Principles recognized and applied by the
State in the Administration of Justice” i.e.
principles recognized and applied by the
State in the administration of justice.

 Kelsen: Norms of human behaviour or pure

theory of law which provides that Law is
pyramid of norms which has its genesis from
on ground norm
 Savigny: Law is a matter of unconscious
growth within the community and can only be
understood in its historical perspective. Law
means will of the people.
 Roscoe Pound “Law is a social control
through systematic application of
force in a politically organised society ” An
instrument to satisfy the maximum wants in a
society with the minimum of friction and
waste.
 B) The Aims of Law
 - To Set Up An Official Framework of Compulsion (By Force).
 EX: Law forbids certain ways of behaving like Murder , Libel , and
Stealing.

 - To Provide Facilities for People to make their own Arrangements.

 EX: Provide Guarantees to people to buy & sell goods

 - To Settle Up Disputes about what the Law is & whether it has

been Broken.

 - To Enable to Maintain Justice Among Society.

 EX: Making persons enjoying their rights & liberties.
 These aims are concerned with:

- Making Society more stable

- Enabling people to Flourish by
regulating Social Life
- Safeguarding Persons & Properties
 C ) Characteristics of Legal Rules

We Can Conclude The Characteristics of The Legal

Rule as :

1- General & Abstract.

2- Governs the Behavior and Relationships of the
Individual in the Society.
3- Accompanied by Sanctions Enforced by the
Public Authorities.
 1- General & Abstract

 Generality of the legal Rule means that the

rule is applicable to all people.

 Being Abstract means that The legal rule

is not Addressed to a particular Person.
 2- Governs the behavior and Relationships
of the Individuals in the Society
- Regulating People’s Actions
- Control their Conduct

How ?!

1- Determines What May Be Done Or Not be Done

2- What is Allowed & what is Prohibited
3- What Actions is considered a crime
 3- Accompanied by Sanctions
Enforced by the Public Authorities

People are expected to obey the Legal Rules

voluntarily, if Not they are obliged to do so by
Applying Sanctions by The Competent
Authorities.
Sources and hirarchy of Law
 Sources of law are the origins of laws;
the binding rules that enable any state
to govern.

 The term "source of law" may

sometimes refer to the sovereign or to
the seat of power from which the law
derives its validity,
 Primary Sources : Give rise to binding
legal norms

 Secondary Sources “Authorities” – may

have weight when primary sources are
absent, unclear or incomplete but are
never the basis of law. In practice they
are relied upon.
Sources of law
 Constitution
 International Law
 Laws
 Customs
 General Principles
Constitution
 Define how governments are to be
organized, and the power and
responsibilities of those governments.
 Serve to protect individual liberties.
 Because a constitution is the blueprint
for the entire government, everything
that the government does must be
consistent with the Constitution. If any
action taken by any part of the
government is inconsistent with the
Constitution, that action is said to be
"unconstitutional" and it must be struck
down.
 A constitution is the aggregate of
fundamental principales or
established precedents that constitute
the legal basis of a polity, organization
or other type of entity and commonly
determine how that entity is to be
governed.
International Law
 International law consists of rules and
principles governing the relations and
dealings of nations with each other, as
well as the relations between states and
individuals, and relations between
international organizations. 
 Public international law concerns itself
only with questions of rights between
several nations or nations and the
citizens or subjects of other nations. In
contrast, private international law deals
with controversies between private
persons. These controversies arise out
of situations which have a significant
relationship to multiple nations.
Domains of International law
 International Law includes the basic,
classic concepts of law in national legal
systems (i.e. statutes, property law, 
tort law, etc). It also includes 
substantive law, procedural law, 
due process, and remedies. The
following are major substantive fields of
international law:
 International economic law
 International security law
 International criminal law
 International environmental law
 Diplomatic law
 International humanitarian law. law of
war.
 International human rights law
international economic law

 International economic law, broadly

conceived, is a field of international law
 that encompasses both the conduct of
sovereign states in international
economic relations, and the conduct of
private parties involved in cross-border
economic and business transactions. 
 This includes, among other things, 
international trade law, law of 
international financial institutions (or
what is known as 
international financial law, and
traditional private international law
 fields.  Additionally, international
economic law includes the following
fields: 
Customs
 Customs in law refers to the set pattern
of behavior that can be affirmed
objectively within a specific social
background. We can carry a claim in
defense of “what has always been done
and accepted by law”. The idea of
prescription is also related to the
Customs. A prescription refers to a right
which is enjoyed through long custom
rather than positive law.
Genral Principles of law
 General principles of law are legal
norms existing among the majority of
nations. Enduring examples of general
principles of law, typically followed in
most jurisdictions, are the doctrines of
good faith, estoppel, and equity.
Researching general principles often
requires taking a deeper look into the
domestic laws of the nation or region
you are interested in.
 General principle of law or general legal
principle refers to a principle that is
recognized in all kinds of legal relations,
regardless of the legal system to which
it belongs. It can also be a principle that
is widely recognized by people whose
legal order has attained a certain level
of sophistication
Morrocan Legal System
 Morocco is a constitutional, democratic,
parliamentary and social monarchy. The
constitutional regime is based on the
separation, balance and collaboration of
powers, as well as citizen and
participatory democracy, and the
principles of good governance and the
correlation between responsibility and
accountability.
 Except for family law and civil law,
influenced by Islamic law, the Moroccan
legal system is directly inspired by
French law, inherited from the
Protectorate and considerably
modernized in the early 1990s.
 Constant dynamics of positivization and
secularization of the normative,
establishment of the legal as the
foundation of the State and of society.
 The foundations of the rule of law,
democracy, and liberalism are the
foundations of the evolution of the legal
system.